NANCY LEE & ASSOCIATES

Certified Verbatim Reporters

P. O. Box 451196

Atlanta, Georgia 31145-9196

(404) 315-8305

THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

PUBLIC HEALTH SERVICE

CENTERS FOR DISEASE CONTROL AND PREVENTION

NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH

convenes the

SECOND PUBLIC MEETING ON

PROPOSED SPECIAL EXPOSURE COHORT PROCEDURES

The verbatim transcript of the Town Hall

Meeting held at the Sharonville Convention Center,

Sharonville, Ohio, at 7:00 p.m. on July 25, 2002. 
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NANCY LEE & ASSOCIATES

1 P R O C E E D I N G S

2 DR. NETON: Okay. Good evening, ladies and

3 gentlemen. There's plenty of room, so I

4 encourage anyone who's seated back more than four

5 or five rows to move forward. It looks like

6 we've got a lot of seating capacity for this

7 evening.

8 Welcome to the public meeting of the

9 Department of Energy/Health and Human Services

10 proposed rule that outline the procedures for

11 dealing with the petitions that will be used to

12 add special -- add classes of workers to the

13 Special Exposure Cohort.

14 If you haven't done so thus far, I would

15 encourage you to please register at the table

16 outside the front door, either -- on your way out

17 probably would be a good time to do that.

18 My name is Jim Neton, and I'll serve as a

19 moderator this evening for this session. I'm an

20 employee of the National Institute for

21 Occupational Safety and Health, and am the Health

22 Science Administrator located within the Office

23 of Compensation Analysis and Support based here

24 in Cincinnati. 

25 I'm also the technical manager over the dose
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1 reconstruction process involved with the Energy

2 Employees Compensation program. So I have

3 somewhat of a dual role this evening. I'll also

4 be answering questions of a technical nature

5 related to dosimetry activities and particularly

6 related to the Special Exposure Cohort, which is

7 the subject of this evening's meeting.

8 With me this evening are two additional

9 people that I'd like to introduce at this time.

10 To my right is Ted Katz, who's also of the

11 National Institute for Occupational Safety and

12 Health. And seated in the first row right in

13 front of me is Roberta Mosier, who is here with

14 us from the Department of Labor. Roberta is the

15 Deputy Director of the Division of Energy

16 Employees Occupational Illness Compensation. As

17 you may know, the Department of Labor actually

18 administers the overall program, the quotes and

19 provisions included in the Act. 

20 The purpose of this meeting is to provide

21 NIOSH the opportunity to present and discuss

22 these procedures that we published in the Federal

23 Register on June 25th. And those procedures are

24 to be used by NIOSH, as I previously mentioned,

25 and consider petitions from classes of workers
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1 who want to be added to the Special Exposure

2 Cohort. And Ted will be addressing this shortly

3 with a presentation this evening.

4 During the meeting, we welcome questions

5 from everyone in attendance. All comments made

6 during the meeting will be recorded and

7 considered in finalizing the rule. Transcripts

8 of the meeting are being taken by a court

9 reporter who's present with us this evening. And

10 the transcript will be available for viewing on

11 our web site, and we expect those to be completed

12 within a couple weeks.

13 We also encourage written comments on this

14 rule that can be submitted to the regulatory

15 docket via several means that are described in

16 the fact sheet that's contained at the back of

17 the room. There's several means one can use to

18 get their comments into the docket. All written

19 comments will be included in the regulatory

20 docket and also published on our web site.

21 In addition to the fact sheets that are back

22 there, we have a couple other pieces of

23 information. I believe there's copies of the

24 Federal Register notice that was issued on June

25 25th. There's also copies of the overheads that
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1 Ted will be using in his presentation this

2 evening. So please avail yourself to those, as

3 you see fit.

4 I would like to take a moment to point out

5 that the purpose of this meeting is to address

6 the Special Exposure Cohort Rule. And we really

7 don't have the resources available this evening

8 to discuss specific questions related to claims

9 that have been filed in the program. If you'd

10 like to inquire about the status of claims, we do

11 have an 800 number available for you to call, and

12 that number is listed in the receipt letter that

13 you should have received from your claim in the

14 program.

15 Now I'd just like to briefly go over the

16 format for the meeting this evening. After these

17 introductory remarks, we'll hear a presentation,

18 as I mentioned, from Ted, that outlines the

19 procedures that are contained in the proposed

20 rule. 

21 I do ask that you hold your questions until

22 Ted has finished and completed his prepared

23 remarks so we can get through it, and then after

24 Ted's presentation is over, we will entertain

25 questions for clarifications on the presentation
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1 at that time.

2 We are recording this, so we'd like you to

3 use the microphones when you ask questions this

4 evening. So once Ted's completed his

5 presentation, just queue up behind the nearest --

6 microphone nearest to your seat. 

7 We would also like to ask that you identify

8 yourself for the record and state your

9 affiliation before you talk, so that can be put

10 into the record as well.

11 I do ask also only one person at a time

12 speak. It's been our experience it is very

13 difficult for a court reporter to capture two

14 simultaneous conversations.

15 After the question and answer session on the

16 rule, then we'll open the meeting for comments,

17 general comments on the rule. And the meeting is

18 scheduled to last until 9:00 o'clock. It looks

19 like we have a small enough crowd that it should

20 be more than adequate to accommodate everyone's

21 comments this evening. If it becomes an issue,

22 we may have to issue some partition time among

23 people. But we'll play that by ear as we go.

24 Once everyone has provided comments and had

25 their questions answered on the rule, and if
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1 there is time available, then we will open the

2 meeting up to more general comments on the Energy

3 Employees Compensation Program. But only until

4 after we've completed the main purpose of the

5 meeting, which is to discuss the Special Exposure

6 Cohort Rule.

7 After the meeting concludes, NIOSH staff, we

8 will stay behind and be available to answer any

9 questions that you might have that couldn't have

10 been addressed during the course of the meeting.

11 So at this point, are there any questions on

12 anything I've said so far before we get started?

13 [No responses] 

14 DR. NETON: No. Okay, good.

15 At this point, then, I'll turn the meeting

16 over to Ted, who will provide us his presentation

17 on the rule.

18 MR. KATZ: Okay. So what I'm going to do --

19 and I'm going to try to keep it to less than half

20 an hour, maybe 25 minutes -- is walk you through,

21 in effect, the rule from the petitioners'

22 perspective to help you -- this may help raise

23 some issues you may want to ask questions about

24 to get a clarification about how the rule will

25 work, and then help you with making comments, if
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1 you have comments about what we have here to help

2 us improve the rule.

3 And just for anyone who doesn't understand,

4 this is a proposed rule. It has no effect of

5 law. We can't use it in this form. We'll have

6 to issue a final rule at that point, and we'll

7 actually be able to take petitions.

8 So I'm going to give you some background

9 first. I'm not sure if this is necessary for

10 many of you, but it may be for some, just so

11 we're starting from the same place. 

12 I'll talk about the cohort that exists

13 already, because EEOICPA -- that's what I call

14 it, the way I pronounce the Energy Employees

15 Occupational Illness Compensation Program Act --

16 established the Special Exposure Cohort and named

17 four groups to be in it at the outset. These are

18 the three gaseous diffusion plants and a nuclear

19 test site in Amchitka, Alaska. 

20 And with certain provisions included,

21 employees at these four facilities, they have to

22 meet certain requirements. For example, at the

23 gaseous diffusion plants they have to have had a

24 job which they could have been badged, if they

25 weren't badged. And there's limited other
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1 requirements.

2 But provided they meet those requirements

3 and they incur one of 22 specified cancers --

4 that's what they're termed in the law -- if they

5 incur one of these cancers and they incur the

6 cancers in the right time period -- there are

7 certain conditions related to that, as well --

8 but then they meet the standard for being

9 compensated under EEOICPA.

10 And the important point to make here is that

11 Department of Labor, in their cases, does not

12 have to determine whether their cancer was as

13 likely as not caused by radiation, which means

14 they don't have a dose reconstruction done for

15 them, and the Department of Labor doesn't do

16 something called determine probability of

17 causation. It's a presumptive finding that their

18 cancer is related to radiation for all these

19 members.

20 So what's the purpose of this rule? This

21 rule was -- Congress and the Administration

22 realized that in addition to the four groups that

23 were included by Congress to the cohort, there

24 may be other groups out there of employees of DOE

25 or the AWEs, the Atomic Weapons Employers, for
10 

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1 whom it is also not possible to estimate their

2 dose with any accuracy; and hence, should be

3 considered to be added to the cohort. 

4 And EEOICPA assigned this responsibility to

5 make additions, consider additions, to the

6 President, who then turned this responsibility

7 over to the Secretary of Health and Human

8 Services -- NIOSH, National Institute for

9 Occupational Safety and Health where we work,

10 that's a part of Centers for Disease Control,

11 which is a part of the Department of Health and

12 Human Services. 

13 So this task came down to us to do, sort of

14 the horse work of this job. But the

15 responsibility still lays with the Secretary of

16 Health and Human Services to make determinations

17 about adding to the cohort.

18 EEOICPA also didn't leave it completely

19 vague, the censored requirements that we were to

20 consider before we would add a class to the

21 cohort. And they had two criteria, substantive

22 criteria that are requirements that a petition

23 for a class would have to pass before it could be

24 added: First, if NIOSH could not estimate

25 radiation doses of the employees with sufficient
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1 accuracy, feasibility do that; and the second,

2 that it's reasonably likely that the radiation

3 doses endangered the health of the employees. So

4 we have to determine that we can't do dose

5 reconstructions, and moreover that the radiations

6 that they were likely exposed to could possibly

7 have caused cancer among them.

8 EEOICPA also requires the procedures related

9 to going about adding classes, three of these.

10 First, the classes must petition to be added to

11 the cohort. Second, that HHS must obtain the

12 advice of the Advisory Board on Radiation and

13 Worker Health in making these decisions as to add

14 the class to the cohort.

15 Now, the Advisory Board is a Presidentially

16 appointed board of experts. It is comprised of

17 physicians with experience with radiation and

18 health, with scientists in that field, and with

19 workers or worker representatives. So those

20 three groups are to be represented on this Board.

21 And this Board has been up and running, I think

22 since February, and is an advisory body to the

23 Secretary of Health and Human Services on all its

24 responsibilities. But this is, of course, a very

25 important one.
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1 The third requirement is that Congress gave

2 itself a window of 180 days after the Secretary

3 of Health and Human Services makes a decision, if

4 he makes a decision to add a class to the cohort,

5 to consider that decision before it becomes

6 effective. And I'll explain more about what that

7 means practically later in the presentation.

8 So let me now just tell you a little bit

9 about from the start, from the get-go, what we

10 have in consideration in producing these

11 procedures, that the Secretary was tasked to

12 produce in considering to add classes. Of

13 course, when we consider these requirements I

14 just told you about that were in EEOICPA, we also

15 considered the procedures that are serving cancer

16 claimants that are not in the cohort now. And by

17 that I mean we consider what goes on with dose

18 reconstructions under another HHS rule, 42 CFR

19 Part 81, and what's required. But determining

20 probability of causation, that's under 42 CFR

21 Part 82. 

22 Our goal is really simple: We want fair and

23 we want openly considered decisions. So we

24 wanted to be certain that petitioners and the

25 public could see very well how these decisions
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1 are made, what they're based upon, and

2 opportunity for participation in the process.

3 The last point I just want to make is that

4 we also considered -- and this is really just a

5 contextual point to make -- the addition of

6 classes to the cohort to be a grave, a very sort

7 of weighty decision to add a class, for the

8 reason that if we add a class to the cohort those

9 individuals in the class that they incur cancer,

10 they can only be specified for the 22 cancers

11 covered under EEOICPA, the Special Exposure

12 Cohort.

13 So, for example, if you have skin cancer and

14 you're out at the Special Exposure Cohort, you

15 cannot be compensated as a member of the Special

16 Exposure Cohort. Likewise, for prostate cancer. 

17 So what we get into now is run through the

18 procedures themselves as they've been set up, how

19 these would work. First of all, we had to

20 determine, define who could petition. And we

21 scoped this as broadly as possible. So one or

22 more covered employees and/or their survivors can

23 petition. 

24 It's entirely dissimilar from what would

25 happen in a class action suit, where you would
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1 have to get together members of the class and

2 they would have to sign on, in effect. This, a

3 single individual who's part of the class or a

4 survivor of that individual can petition. And

5 secondly, a union who represents currently or in

6 the past represented employees can bring a

7 petition as well.

8 How do you petition? Decide whether you can

9 meet the petitioning requirements, which I will

10 discuss in a moment; complete and submit a

11 petition form from NIOSH. You will get this from

12 NIOSH. You will be able to do this

13 electronically on the web without a piece of

14 paper moving at all, or we'll provide petition

15 forms in paper form too. And as you'll see,

16 we'll be there to assist you in your petition as

17 well.

18 What are the petition requirements that you

19 have to meet? Now, the major point to make here

20 is that they differ and depend on a very

21 important factor, which is whether or not we have

22 already attempted to do a dose reconstruction for

23 the petitioner or a member of the class already

24 and were unsuccessful, were unable to do dose

25 reconstruction, in effect, because the records
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1 available weren't adequate to do the dose

2 reconstruction.

3 If we have done this, if we've already

4 attempted to do a dose reconstruction and we

5 determine we can't, we are going to encourage you

6 to petition on behalf of a class because there

7 are likely to be plenty of other workers in your

8 same shoes for whom we can't do a dose

9 reconstruction. So we're going to encourage you

10 to do that. 

11 We're going to provide you with the petition

12 form to do that. And there's very little for you

13 to do in terms of then making that petition.

14 Really all you have to do is indicate on that

15 petition form that you need a petition on behalf

16 of a class, that NIOSH was unable to complete a

17 dose reconstruction for you. And that's the only

18 substantive thing you have to do on the form, to

19 check the box saying we couldn't do it, and

20 provide otherwise -- you just provide them

21 information that may be for administrative

22 purposes, contact information and so on. No

23 other requirements.

24 Now, there's the other case where you have

25 not attempted -- submitted a claim for
16 

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1 compensation and had a finding from us that we

2 couldn't do a dose reconstruction. And this

3 provision was really developed with having in

4 mind that it is not a requirement for a class to

5 have members that already have incurred cancer to

6 be able to petition, just as the existing Special

7 Exposure Cohort doesn't include only people with

8 cancer. It's anybody in the class that can't get

9 compensated until -- they can't make a claim for

10 compensation until they incur cancer, but they're

11 already members of the Special Exposure Cohort

12 for the existing Special Exposure Cohort.

13 Likewise, we wanted to have an avenue for

14 people to petition before they had even incurred

15 cancer. But there are, hence, different

16 substantive requirements they have to meet for

17 them to petition. And by substantive, there need

18 to be real grounds for them to make a petition.

19 So in their case, we need them to define a class

20 to start with. 

21 If we couldn't do your dose reconstruction

22 you don't have to define the class, as there are

23 others who may be in your shoes. But in this

24 case you have to define the class, facility, job

25 titles, duties. It may be everyone in that
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1 facility. It could be whatever, but you have to

2 define that.

3 And then documenting the reasons to believe

4 there was a health-endangering radiation

5 exposure. And these could differ substantially.

6 It may be that they were short-term from

7 radiation effects, high levels of radiation that

8 you conducted in, and that would suffice to say

9 that there was substantial radiation exposure.

10 So you don't have to have that as an element. It

11 could be that you just define, are able to define

12 the sources of radiation exposure, circumstances

13 of those, radiation protection shortcomings.

14 And then thirdly, document reasons to

15 believe that doses could not be estimated with

16 sufficient accuracy. And we're not requiring you

17 to make a case that dose reconstructions cannot

18 be done. We're simply requiring you to show that

19 there is a problem with records being available

20 on radiation exposures there, that you've made a

21 real effort to determine that dose

22 reconstructions might not be able to be done.

23 So those are the requirements. And then the

24 next step here is will your petition be

25 considered? Have you met the requirements? 
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1 Well, I've already said if we couldn't do

2 your dose reconstruction that's all you need to

3 show in that case. So if we weren't able to

4 complete your dose reconstruction your petition

5 meets the requirements; it will be evaluated. 

6 There'll be a question in the other cases

7 where we haven't attempted the dose

8 reconstruction, whether it does meet those

9 requirements. We'll evaluate your petition, and

10 you will receive a report, a recommended decision

11 from the Secretary of HHS, saying that -- you

12 will receive a recommended decision either way. 

13 But the case where it matters is where the

14 Secretary would say, we don't think your petition

15 passes muster. And we'll identify what the

16 problems are with the petition. And NIOSH will

17 be available to help you address that, and you

18 can address that. But you'll have 30 days to

19 revise the petition. 

20 And at that point -- so from that point

21 forward, HHS would make the final decision. And

22 HHS will not make this decision independently on

23 its own. It will obtain the advice of -- That

24 will obtain the advice of the Advisory Board on

25 Radiation and Worker Health in these cases. So
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1 this is an independent body that advises HHS.

2 Now, how will NIOSH evaluate your petition?

3 You pass; you've met the requirements. The first

4 thing NIOSH will do, we'll obtain information and

5 records from DOE and other sources -- from the

6 petition, from co-workers at the site, from all

7 sources possible, possibly from health studies

8 that have been done at that site.

9 I don't know how many of you are aware that

10 NIOSH has, for about a decade, been responsible

11 for doing health research at the DOE facilities,

12 looking at radiation and cancer and other health

13 effects as well. So we've learned about DOE

14 record systems. We've learned a lot about how

15 operations work at the DOE facilities, although

16 we are learning a lot more, as this program

17 develops, than we knew. But we've learned a lot,

18 we know a lot about this. That's the reason for

19 that, that these responsibilities under EEOICPA

20 were tasked to NIOSH.

21 But we'll be getting information records

22 from DOE and other sources like our health

23 research, for example. And the first thing will

24 be determining whether dose reconstructions are

25 feasible.
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1 And the second element -- and these relate

2 to the Congressional requirements -- will be

3 determining what the potential radiation dose

4 levels were, and whether they were likely to have

5 endangered health.

6 And lastly, out of doing that evaluation

7 research, we will then define class or classes of

8 employees that -- let me explain that. In the

9 case where we couldn't do a dose reconstruction

10 for you, we already said in that case we're

11 defining the class anyway. So we're going to see

12 how many people were in your shoes, in effect,

13 all right; and how many people couldn't have dose

14 reconstructions.

15 But in the case where you petition -- the

16 other case, where you petition where we haven't

17 attempted a dose reconstruction, in that case you

18 will define the class initially. But to do this

19 research we may find out, in fact, there were a

20 lot more employees that should have been in --

21 employee types that should have been identified

22 and weren't identified in your petition, and add

23 those, in effect, to the class.

24 We also may find that despite the fact you

25 identify the class of this scope, perhaps part of
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1 that class is actually different. Either we have

2 records that allows dose reconstruction for a

3 part of that class, or perhaps their radiation

4 exposures weren't similar to the rest of the

5 class you initially define. So you may end up

6 having, for example, two classes, really, at the

7 end of our process versus the one that you

8 petition for.

9 And then we'll report results to petitioners

10 and the Board. 

11 Now let me explain a little bit more about

12 the NIOSH evaluation performed, and then go on to

13 the next steps with what the Board does and the

14 Secretary of HHS. 

15 So first question, how will NIOSH determine

16 potential radiation dose levels? You already

17 have a situation right -- you have a situation

18 where you think you have a real paucity of

19 records. But we'll evaluate. We'll get all the

20 information that's available from all these

21 sources and make a determination as to radiation

22 sources potentially present based on all the

23 information, everything people know, as well as

24 are reflected in the records, both, and their

25 possible qualities and the possible
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1 characteristics of employee exposures and the use

2 or non-use of radiation protection measures. 

3 So we will still have to make a

4 determination based on whatever information is

5 available about these things. But of course, as

6 you understand, it's a very rough determination

7 compared to doing a dose reconstruction. And

8 then NIOSH technical staff will judge whether the

9 radiation doses could have reached the level

10 determined likely to endanger health. And I'm

11 going to explain more about that now. 

12 How do we interpret “endanger health” in

13 this case? Well, we interpret it as the minimum

14 dose of radiation reasonably likely to cause

15 specified cancers. Let's look narrower, in

16 saying “endanger health” is the reason why we do

17 that. Specified cancers are the only health

18 outcome for which workers can be compensated as

19 members of the Special Exposure Cohort. Any

20 other kind of health outcome has no bearing in

21 terms of compensation and being a member of the

22 Special Exposure Cohort. And secondly, we have a

23 means to estimate the likelihood that a cancer

24 has arisen based on a radiation exposure.

25 Points I want to make about this, the
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1 minimum dose level that we've determined, I'm not

2 talking about a one minimum dose level for all

3 petitions. This would be determined for each

4 petition. It would differ likely for each

5 petition. And the reason it would differ is

6 because this depends, in part, on the source of

7 radiation and the quantity of radiation, the

8 source of radiation and the type of radiation

9 exposures, the type of cancers that’s related to

10 those radiation exposures, characteristics of the

11 class, when cancers could have been incurred

12 after radiation exposure, and other factors.

13 And NIOSH technical staff will calculate the

14 minimum dose using factors, all these factors,

15 factors that are favorable to the petition, that

16 are more likely to result in the petition being

17 granted. And I want to sort of exemplify that.

18 One of the factors that's very important is what

19 type of cancer you consider that's related to

20 those radiation exposures. And we'll be using

21 the cancers that are most readily caused by the

22 type of radiation exposure that occurred, which

23 will mean a low threshold, instead of maybe in

24 terms of a dose, a dose requirement for the

25 petition to be granted.
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1 What happens after NIOSH goes through this

2 process and produces this report? The Board

3 reviews the NIOSH report. And then the Board, at

4 this point, they may ask us to go back and do

5 more work, and they say you haven't gone far

6 enough with this, in which case we may be doing

7 that. They'll advise us on that.

8 Petitioners can participate in this Board.

9 It's going to be a public meeting that the Board

10 considers a petition. So you can attend. You

11 can make public comments, just as you can at this

12 meeting.

13 And then the Board will prepare a report

14 that will advise -- this is its role, to advise

15 the Secretary of Health and Human Services of a

16 decision here, whether or not to add the class

17 and what the definitions of the class are. And

18 they'll have to then explain what the basis of

19 their recommendation is, again on the same

20 parameters that were required by the statute.

21 HHS then will, based on the NIOSH report,

22 based on the Board's advice, come to a decision

23 to add or deny adding one or more classes, as it

24 might be. Petitioners will have 30 days then to

25 contest the decision, and there'll be an
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NANCY LEE & ASSOCIATES

1 administrative process to address that contest if

2 that arises.

3 And then there'll be a final decision by the

4 Secretary of HHS. And if it's positive, that

5 final decision goes to Congress, as I said

6 earlier. And Congress has 180 days in which they

7 might either expedite the decision, meaning --

8 these people have cancer, and if Congress has the

9 opportunity -- it's going to depend on the timing

10 and so on -- they might expedite it so that they

11 don't have to wait 180 days for it to become an

12 effective decision, because it won't be effective

13 until those 180 days have expired or Congress has

14 acted. Likewise, Congress has the right to

15 reject the decision of the Secretary of HHS.

16 And then once classes are added, NIOSH, of

17 course, will work hard with other agencies and

18 with other parties, organizations to get the word

19 out to members of the class that they are part of

20 an added class to the Special Exposure Cohort.

21 Now there's a final provision in this rule

22 for cancelling a cohort addition or modifying a

23 cohort addition. Now this would arise in a case

24 where we're going through records at the facility

25 and we stumble on, for example, stumble on
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1 records that allow us to do dose reconstructions,

2 where we thought we could. And this has

3 occasionally arisen, where records get discovered

4 that no one knew existed, the trail was lost on

5 them at some point in history.

6 In that case, we would at that point --

7 after going through a deliberative process in

8 which, again, the public would have an

9 opportunity to participate -- and the Board would

10 advise us. But if we make a decision ultimately

11 to the Secretary of HHS to cancel a class, at

12 that point claimants, members of that class who'd

13 want a claim, would come in with a regular cancer

14 claim and still would have a dose reconstruction.

15 They would have probably of causation determined,

16 they would go that route. They would not go to

17 the Special Exposure Cohort route, of course.

18 Now, some of you may wonder when you can

19 petition. Right now, as I said, we're under

20 notice of proposed rule making. This is not

21 effective. You can't petition. You can petition

22 when the procedures are final, and this is

23 unlikely before the beginning of 2003, January or

24 so. 

25 What has to happen before then is we need to
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1 get all the public comments, your comments and

2 all. We have to deliberate over those and make

3 decisions as to what the final rule is going to

4 look like, and it may change depending on the

5 public comments. And then it has to go through,

6 of course, just like the original proposal, it

7 has to go through levels of government up to be

8 cleared for it to be published. And that is a

9 somewhat lengthy process. So that's why we think

10 really before early January it's unlikely that

11 you'll have an effective rule out.

12 Final points: One, if you have cancer, we

13 encourage you to become a claimant now, not to

14 await these procedures. As I explained with how

15 these procedures work, if you are a claimant, a

16 cancer claimant, your claim will come to us.

17 We'll attempt to do a dose reconstruction. If we

18 can't do a dose reconstruction, you've already

19 done -- in effect, we've done together -- the

20 horse work for deciding whether your petition

21 should be evaluated in this. Really, you'll have

22 saved a lot of time, in effect, that way. You've

23 made half the case already for the petition.

24 And we are very much interested in your

25 comments. But first, before you start
28 

NANCY LEE & ASSOCIATES

1 commenting, I would love to have, if you have

2 questions that you want me to clarify, questions

3 about things I've said you want me to clarify,

4 let me take those first. 

5 And then each of you, again, if you can come

6 to the mike and identify yourself -- this is

7 necessary for the recording -- that would be

8 great. There are three mikes. Any of these will

9 do.

10 MR. ALVIS: Jim, I'm Charlie Alvis. I was

11 former fire and safety inspector at Fernald. I

12 helped start the place up, and I worked there

13 till '92.

14 Are you familiar with the different types of

15 film badges that they have? Jim, do you?

16 DR. NETON: Yes, we are. We're familiar

17 with the badge, the changes in the technology of

18 the badges over time, the film badge, and then it

19 went to the thermoluminescent dosimeter sometime

20 in the '80s.

21 MR. ALVIS: And none of them were digital?

22 DR. NETON: No, sir, that's correct.

23 MR. ALVIS: None of them. In other words,

24 you'd receive 500 millirems a day. You receive

25 that every day for 30 days till they changed the
29 

NANCY LEE & ASSOCIATES

1 badge. You would still only show 500 millirems.

2 It would have to go above 500 to show any more

3 than that; is that not right, Jim?

4 DR. NETON: I'm not quite sure that I --

5 MR. ALVIS: Well, I am, yeah.

6 DR. NETON: They typically respond

7 incrementally to radiation exposure.

8 MR. ALVIS: How many criticalities have we

9 had at Fernald?

10 DR. NETON: To my knowledge, none.

11 MR. ALVIS: That is absolutely right. And

12 that is what it would take to get a mass -- that

13 -- if there's 1,000 millirems to make a -- in the

14 film badges, like I say, if they took you off of

15 this job while, say, at 500, and put you on

16 another one that was 400, you wouldn't have

17 1,000.

18 So this is all false, what you're basing

19 this on, or what you people are conceding is how

20 you can come up with something like this.

21 Because all of the records -- I can remember a

22 few that was overexposed, and they might have

23 laid their badge on something.

24 Can you recall the incident at Paducah where

25 the gentleman died of overexposure? He was paid
30 

NANCY LEE & ASSOCIATES

1 off, his wife was, July the 31st of this past

2 year, just handed a check for $150,000. 

3 DR. NETON: Was he a member of the Special

4 Exposure Cohort?

5 MR. ALVIS: Well, he was --

6 DR. NETON: It sounds like if he received

7 $150,000, he may have been part of the Special

8 Exposure Cohort.

9 MR. KATZ: Yeah.

10 DR. NETON: I might say, what we are talking

11 about here is actually relevant to the Special

12 Exposure Cohort. If the need is determined, and

13 we do evaluate every dosimetry program that the

14 badges were not capable of measuring what they

15 were intended to, then that would be grounds for

16 pursuing possibly the Special Exposure Cohort.

17 MR. ALVIS: Well, they knew this. They knew

18 this. And now when they go over them, nobody's

19 going to receive the overdosage.

20 DR. NETON: Well, the -- I will --

21 MR. ALVIS: There's the radon gas and the

22 thoron gas.

23 DR. NETON: Right. And --

24 MR. ALVIS: We had that out there, and they

25 didn't even have an instrument that could read it
31 

NANCY LEE & ASSOCIATES

1 until 1985, '86.

2 DR. NETON: I understand what you're saying.

3 We do take into account these, what's known as

4 the missed dose, where we evaluate the program

5 and add back in dosage that could not have been

6 detected by the monitoring program.

7 In addition, we do interview every single

8 claimant, and we obtain from you the impression

9 or your feelings for what the program could or

10 could not have done. And that is considered in

11 the dose reconstruction as well. We're doing the

12 best we can with that. The more we --

13 MR. ALVIS: Well, I think that if you want

14 to include Fernald with Miamisburg, Richland, Oak

15 Ridge, then your beryllium would be the main

16 stage at Miamisburg. We had beryllium at Fernald

17 and used it. That was the repository for it.

18 But it wasn't used as much as it was there. But

19 you're being exposed to gasses, thoron, radon,

20 chemicals of all sorts.

21 I think that they're trying to categorize

22 you, and they don't know how to categorize you. 

23 This one here seems like it's just a big

24 thing, that we're going to look on paper here and

25 see if you were exposed. You went through this,
32 

NANCY LEE & ASSOCIATES

1 Jim, in Amchitka. How many did you find

2 overexposed?

3 DR. NETON: No one was overexposed.

4 MR. ALVIS: Right.

5 DR. NETON: There were some people that had

6 measurable exposures, though.

7 MR. ALVIS: Yeah, right. Thank you.

8 DR. NETON: Okay. Thank you for your

9 comments. 

10 Any other comments on the SEC proposed rule?

11 Questions? Clarifications?

12 MR. RAY: Why wasn't nuclear -- when you

13 mention that in cohorts -- can only be

14 compensated for specified cancers, right?

15 MR. KATZ: What was the -- excuse me? Was

16 the question when will you be compensated for

17 specified cancers?

18 MR. RAY: Say you add a cohort.

19 MR. KATZ: You --

20 MR. LEWIS: You added a cohort. When you

21 add a cohort --

22 MR. KATZ: When you add a cohort, that's

23 exactly right, you can only be compensated for

24 specified cancers.

25 MR. RAY: So that --
33 

NANCY LEE & ASSOCIATES

1 MR. KATZ: Maybe can you write your question

2 for --

3 MR. LEWIS: He'll fix it.

4 DR. NETON: If you could write the question,

5 maybe --

6 MR. KATZ: -- then someone else can read it

7 for you.

8 MR. LEWIS: He can fix it. It's fixed.

9 DR. NETON: Okay. Can you speak into the

10 mike too, cause that will help us. Thank you.

11 MR. RAY: Well, what I was trying to compare

12 was Special Cohorts now, so anybody that's not in

13 the Special Cohort could go for dose

14 reconstruction. Okay. Now if you're going to

15 have a cohort, then only those specified cancers

16 would be covered, right?

17 MR. KATZ: That's correct.

18 MR. RAY: Now, what are you going to do with

19 people that are already in the Special Cohort

20 that do not have the specified cancer?

21 MR. KATZ: Thank you. That's a very good

22 question. And that is different, because people

23 who are already in the specified -- in the

24 Special Exposure Cohort, excuse me -- who do not

25 have a specified cancer, they will come to us
34 

NANCY LEE & ASSOCIATES

1 through the Department of Labor. If the

2 Department of Labor determines that you do not

3 have a specified cancer but you're part of the

4 Special Exposure Cohort, they will come to us, to

5 NIOSH, for a dose reconstruction, and we will

6 attempt to do a dose reconstruction.

7 So, and if we can do a dose reconstruction,

8 then the Department of Labor would take the next

9 step of determining probability of causation.

10 And then you could be compensated, even though

11 you're part of the Special Exposure Cohort. And

12 the important distinction here is those groups

13 were added to the Special Exposure Cohort by

14 Congress by different procedures than what we're

15 proposing here.

16 So we didn't make initially a determination

17 that we couldn't do a dose reconstruction for any

18 people at those sites.

19 MR. RAY: So in essence, what you're saying,

20 that in a Special Cohort other cancers, if you

21 can't do a dose reconstruction, then there's no

22 compensation available, right?

23 MR. KATZ: That's exactly true.

24 MR. RAY: Okay. And then when you talk

25 about radiation you're talking more than just
35 

NANCY LEE & ASSOCIATES

1 penetrating radiation, right?

2 MR. KATZ: Yes. Well --

3 DR. NETON: More than what radiation?

4 MR. KATZ: More than penetrating radiation.

5 DR. NETON: Yes, internal exposure --

6 MR. KATZ: Yes.

7 DR. NETON: -- as well as external.

8 MR. KATZ: Both. Both internal and

9 external.

10 MR. LEWIS: Sam Ray.

11 DR. NETON: Sam Ray. 

12 MR. KATZ: Please, please, come up to the

13 mike.

14 MR. ALVIS: You can't hear me?

15 MR. KATZ: No, it's just that for our

16 recorder it's very important, that's all.

17 MR. ALVIS: Oh, I'm sorry. I just got a

18 letter back from the state -- I mean from

19 Cleveland, and I've got till August the 2nd. I

20 won my state against the case -- case against the

21 state for airway obstructions, both large and

22 small. 

23 They threw it out in Cleveland. Some little

24 girl came on the telephone and said they -- if

25 you think you're going to get this $150,000,
36 

NANCY LEE & ASSOCIATES

1 you're not going to get it. And I thought this

2 was really nice, you know. She probably just

3 graduated. But what I'm saying is, was too many

4 people that don't know what they're talking about

5 are involved in this. 

6 DR. NETON: Are you talking about a claim

7 for beryllium sensitivity?

8 MR. ALVIS: I'm talking about I got that

9 test ran, and really Fernald should have been

10 included in that Miamisburg deal. That's what

11 I'm saying. They're not categorizing it like

12 they should. 

13 MR. KATZ: It's just unclear to us, who are

14 the “they” in this case? Who --

15 MR. ALVIS: Well, the Cleveland board that

16 this letter's from. I got it right here, if you

17 want to look at it.

18 DR. NETON: But did you file a claim for --

19 MR. ALVIS: I sure did.

20 DR. NETON: Not --

21 MR. ALVIS: Yes, sir, I was the first to

22 file one.

23 DR. NETON: Not for radiation, but beryllium

24 exposure.

25 MR. ALVIS: Those words weren't even
37 

NANCY LEE & ASSOCIATES

1 mentioned until what, a year ago? And I filed a

2 long time before that.

3 DR. NETON: Did you file with the Department

4 of Labor?

5 MR. ALVIS: Yes.

6 MR. KATZ: But the conditions for the

7 Department of Labor for which you can be

8 compensated here --

9 MR. ALVIS: Right.

10 MR. KATZ: -- are beryllium, silicosis, and

11 –

12 MR. ALVIS: Well, that's what I'm saying,

13 they categorized this, and this was fine for

14 Miamisburg. They have silicosis, other things

15 like that, and there don't have to be coal dust

16 to be silicosis. And I tried to explain to them

17 that UO 3, UO 4, that all the UO 3, UO 2, all of

18 them has silicon in it. And I was kicked out.

19 They led you to believe that all you had to

20 do was file. Then when I got all the lists back

21 -- I just got a letter back from my lung, and

22 I've got -- I'll bring this to you like this.

23 Miamisburg, cancer and beryllium. The man

24 overexposed at Paducah, that was radiation,

25 nothing about silicosis.
38 

NANCY LEE & ASSOCIATES

1 DR. NETON: Right.

2 MR. ALVIS: 26 percent of my lungs is gone,

3 80 percent of my heart's gone. And yet I'm out

4 as of August the 2nd, because they gave me 30

5 days to get a beryllium blood test. And you know

6 how long it takes to get a beryllium test?

7 MR. KATZ: No, I don't. I'm sorry.

8 MR. ALVIS: It can't be run in the State of

9 Ohio. It has to be sent to Denver, Colorado.

10 And it takes about four months to get it. They

11 wanted it in 30 days. I have the letter there if

12 you want to read it.

13 MS. MOSIER: I'd be glad to talk to you

14 about your case after some of the other folks

15 have a chance to ask questions.

16 MR. ALVIS: Okay. I've asked enough.

17 MS. MOSIER: Yeah, we can easily give

18 extensions of time frames if you need more time

19 to gather evidence.

20 MR. ALVIS: Well, I had so many, still have

21 them; I'm not getting any answers.

22 MR. KATZ: Just for the record, that's

23 Roberta Mosier from the Department of Labor who

24 was just speaking.

25 DR. NETON: Okay. Any other comments?
39 

NANCY LEE & ASSOCIATES

1 questions?

2 MR. TABOR: I guess that leaves me.

3 DR. NETON: Yeah.

4 MR. TABOR: I'm Robert Tabor, Fernald Atomic

5 Trades and Labor Council. I worked at the

6 Fernald Plant. I'm a 21-year veteran employee

7 there. And I'm also one of the union leadership

8 individuals. 

9 And I want to discuss a little bit or make a

10 comment concerning the Special Exposure Cohort

11 relative to unions petitioning and possibly get

12 some clarification. But before I do, there's a

13 couple other comments that I want to make. I

14 have a bunch of stuff here, but it's way too long

15 to spend the time to read on. And I probably

16 will be submitting something officially that

17 would be the equivalent of giving this as a

18 public verbal testimony.

19 But a few of the comments that I would like

20 to make for the record would be that NIOSH

21 encourages a worker to complete the dose

22 reconstruction before submitting a petition for

23 the Special Exposure Cohort status. This process

24 would prolong the claim for years; at least

25 that's how I see it. There are some things in
40 

NANCY LEE & ASSOCIATES

1 there that would allude to the fact that this

2 could go on for a lengthy amount of time.

3 Another comment that I have would be if a

4 worker does not file for dose reconstruction,

5 NIOSH's rule requires them to prove a negative,

6 if I can put it in that way, that it is not

7 feasible to estimate his or her dose with

8 sufficient accuracy. In other words, NIOSH's

9 rule requires them to prove a negative by

10 requesting dose information from DOE or its

11 contractors showing that they suffered medical

12 harm, or proving that the materials they were

13 using were dangerous.

14 Another comment would be NIOSH's procedure

15 is a case-by-case method that provides little

16 guidance on how a worker should receive or

17 ensures a worker any accountability in the

18 process.

19 And a fourth comment would be NIOSH assumes

20 that the dose or exposure information will be

21 available. And that's not necessarily the case. 

22 And the fifth comment would be NIOSH's rule

23 creates a higher burden of proof for the new SEC

24 petitions than for the statutory SECs at the

25 gaseous diffusion plants at Paducah, Portsmouth,
41 

NANCY LEE & ASSOCIATES

1 and Oak Ridge.

2 Now with that in mind, I don't know how

3 Fernald kind of got left out of the scheme of

4 things. But for the record, the things that

5 happened at Fernald or the type of work that

6 Fernald did, and the kind of exposures that or

7 the kind of hazards that the people were exposed

8 to, are not a whole lot different than what you

9 would find at Paducah or what you would find at

10 Portsmouth. And there's many of us that believe

11 the employees at Fernald should have been

12 considered as part of the initial cohort group.

13 But of course, I guess at this particular point

14 in time, the way the law reads they're not

15 included in this.

16 But I'd like to just simply point out that

17 those employees at the Fernald plant, quite

18 frankly, aren't any different than those

19 employees at Paducah and at Portsmouth. Take

20 this into consideration, that the products that

21 Paducah made came to Fernald. The same product

22 that those people were exposed to down there is

23 the same product that our employees at Fernald

24 were exposed to. Even though you might have some

25 difference in the processes, I would say that the
42 

NANCY LEE & ASSOCIATES

1 way people were exposed is not a whole lot

2 different. 

3 And the same is true of products from

4 Portsmouth. We interfaced with both of those

5 plants with the same materials they handled; and

6 yet the employees at the Fernald Plant were not

7 given consideration for the initial original

8 Special Exposure Cohort.

9 So this leaves us with the situation of

10 applying for, I guess in some situations, a

11 Special Exposure Cohort through the process

12 that's now proposed. The only thing of it is

13 that as I said here, NIOSH's rule creates a

14 higher burden of proof for the new SEC petitions

15 than for the statutory SECs at the gaseous

16 diffusion plants in Paducah, Portsmouth, and Oak

17 Ridge.

18 So I find this to be, I guess I would say,

19 it seems to me somewhat unfair, or there's not

20 equity in the process. 

21 And we have some -- there's some other

22 things. I was looking over my notes here. Maybe

23 if I -- let me see here. Here's one I did want

24 to mention. This is a little bit different from

25 what I was talking about.
43 

NANCY LEE & ASSOCIATES

1 The introduction section of 83.2, I believe

2 that states that the initial claim of the

3 claimant must be denied by the DOL, since the

4 compensation for cancer claim -- let me see here

5 -- since the compensation for cancer, a claim not

6 based on the cohort provision, requires the

7 completion of NIOSH dose reconstruction. I

8 believe that's the rule. 

9 The comment to that would be the rule makes

10 it clear that this introductory statement is

11 misleading. A claimant does not need to apply

12 through DOL for compensation to secure SEC

13 status. This sentence should be corrected to

14 reflect that fact. You need to give some thought

15 to that, unless you've got some feedback for me.

16 MR. KATZ: You wanted to -- before you go

17 on, I'd like to just respond to one of your

18 comments here, just because I think that

19 clarification's needed for people. But you also

20 said you had a comment about unions petitioning.

21 MR. TABOR: Oh, well, I guess what I -- it's

22 not real, real clear in my mind exactly how to go

23 about that. I am researching that and reading

24 the rules on that, inasmuch as I think that you

25 have to specify a number of things for that
44 

NANCY LEE & ASSOCIATES

1 particular class. And I'm not certain that that

2 petition is submitted the same way as an

3 individual petition would be petitioned or not.

4 MR. KATZ: Okay. So let me respond to that

5 first.

6 MR. TABOR: Okay.

7 MR. KATZ: That petition would be submitted

8 just as it would be -- let me speak clearly --

9 submitted by an individual. So it's the same,

10 the same requirements for a union as they would

11 be for an individual -- absolutely the same, same

12 process, same consideration would be given.

13 Let me also clarify, though, something, a

14 statement you made that we're requiring the

15 petitioner to prove a negative, that we are

16 requiring the petitioner to prove that dose

17 reconstructions cannot be done, is what you were

18 trying to say, I think. And we are not requiring

19 petitioners to prove that dose reconstructions

20 can't be done. That's a burden that's on our

21 shoulders, not the petitioners. 

22 The petitioner is, in effect, being required

23 simply to show some diligence in having made an

24 effort to determine whether there is a records

25 problem that would lead us to believe there might
45 

NANCY LEE & ASSOCIATES

1 be a basis for considering a petition, so that

2 there's some grounds for considering a petition.

3 MR. TABOR: Okay.

4 MR. KATZ: Okay. Thank you very much. 

5 DR. NETON: Any other comments?

6 MS. BINGHAM: Eula Bingham, University of

7 Cincinnati. I think I heard you say that a

8 worker can opt out of a Special Exposure Cohort.

9 You said that for the ones that are statutory.

10 It theoretically could be possible for a worker

11 to opt out and decide not to be included amongst

12 a group of workers who are in a Special Exposure

13 Cohort that, let's say, his union puts together,

14 depending on the type of cancer that person has,

15 right?

16 MR. KATZ: Well --

17 MS. BINGHAM: So there will be -- you can

18 opt out?

19 MR. KATZ: Well, the opting out, the problem

20 with classes that are added by us to the cohort

21 is they're added on the basis that we cannot do

22 dose reconstructions --

23 MS. BINGHAM: Okay. You say you --

24 MR. KATZ: -- in part.

25 MS. BINGHAM: Okay. But maybe that person
46 

NANCY LEE & ASSOCIATES

1 doesn't want to be in it to begin with, and you

2 are able to find the information. Depending on

3 the kind of cancer --

4 MR. KATZ: Right.

5 MS. BINGHAM: Okay. Let's say there are a

6 group of workers who describe a situation like

7 the following: We went in to a job and we got

8 badges. At the end of the day we took those

9 badges off and threw them in a box. Next day we

10 went back to the job and they passed the badges

11 out. And I got Joe's today, and Mike's the next

12 day. How many times will that have to happen,

13 you think, based on what you know about the

14 reconstruction, for that to be that you really

15 couldn't do their dose reconstruction? Give me a

16 clue.

17 The reason I'm asking some of these specific

18 things is there's some considerable decisions to

19 be made by workers. If you are a -- if you have

20 lung cancer and have ever smoked, you might as

21 well forget it unless you're in a Special

22 Exposure Cohort, from what I know about dose

23 reconstruction.

24 DR. NETON: Well, that's not necessarily

25 true.
47 

NANCY LEE & ASSOCIATES

1 MS. BINGHAM: Well, it's not necessarily.

2 But you have to have a whopping dose for a long

3 time.

4 DR. NETON: That's -- which has occurred in

5 the early-on days of operation of Department of

6 Energy facilities to some extent. But in more

7 recent --

8 MS. BINGHAM: Right.

9 DR. NETON: -- recent time periods you are

10 correct, the doses are much lower.

11 MS. BINGHAM: Right.

12 DR. NETON: The original question on how

13 many times the badges would have to be exchanged

14 in that method for a dose reconstruction not to

15 be possible is somewhat difficult to answer. But

16 I think I can say that the badges are our first

17 line of inquiry.

18 MS. BINGHAM: Well, 25 percent? Half the

19 time?

20 DR. NETON: Well, we would -- the badge --

21 we have several methods of evaluating exposure to

22 the workers.

23 MS. BINGHAM: Right.

24 DR. NETON: The badges are the first line

25 because they tend to be the most, we believe, the
48 

NANCY LEE & ASSOCIATES

1 most accurate depiction of their exposures. 

2 Given that we couldn't assume that anyone's

3 badge was worn by an individual, we would say

4 that's probably not a good indicator of their

5 exposure. So we would back off and start looking

6 for air monitoring results. Did they have

7 dosimeters in the area? Can we get a clue as to

8 any magnitude or level of the dose that was in

9 that facility? 

10 Then our third line would be to go and look

11 at evaluation of radiation survey results that

12 were taken with portable survey readers.

13 If all those lines of inquiry were

14 exhausted, then yes, we would say we can't do a

15 dose reconstruction.

16 MS. BINGHAM: You look at the kind of -- the

17 contaminant?

18 DR. NETON: Well, right, the source

19 material. Is there one gram of material that

20 people are working with, or a ton? And that

21 would be the last line. 

22 And then if we couldn't determine that,

23 that's only the first condition for a Special

24 Exposure Cohort -- that is, the dose

25 reconstruction can't be done. But the second,
49 

NANCY LEE & ASSOCIATES

1 and as important part, is that the health must

2 have been endangered by that potential exposure.

3 So then we get into the bracketing scenario.

4 How large could that dose have been, given that

5 we don't know much about it? Is it an order of

6 magnitude of the calculation that we would use?

7 And if that appeared to be sufficient to have led

8 to a probable causation of 50 percent or greater,

9 then that would qualify.

10 MS. BINGHAM: Let me just say this for the

11 record. I'm asking these questions not just for

12 my own edification, but I think that being an old

13 regulator, as you know, it's very difficult for

14 workers to read these regulations. And they'll

15 have to get somebody in the union. They'll have

16 to get a lawyer to help them out, because for

17 some people it's to their advantage, let's say,

18 to be in a Special Cohort. Let's say if you have

19 lung cancer, by and large it probably is, and

20 have smoked.

21 Someone needs to, when you finalize that

22 rule, come up with some of this explanation so

23 that, let's say, a labor rep someplace can pull

24 those things out and can help groups of workers

25 and facilities make decisions. 
50 

NANCY LEE & ASSOCIATES

1 I know NIOSH feels like most of this is

2 their responsibility. But, boy, they're going to

3 really get hit in the head and blamed for some

4 things that they'll think they're not responsible

5 for.

6 I would say the more you can put in the

7 final rule, your justification you put in the

8 Federal Register to explain the cause and effect,

9 and if you do this, if you do that, the better

10 off you'll be. Because otherwise it'll be --

11 it's going to all get turned over to attorneys.

12 And some of them will be anyway, and I don't

13 think that's the way it's -- this compensation

14 was ever planned. That's all.

15 DR. NETON: Okay, thank you.

16 MR. KATZ: Thank you.

17 DR. NETON: I would say that related to the

18 previous question that we're not asking the

19 claimants to prove that dose reconstruction can't

20 be done, but merely point us in the right

21 direction. We need to have a starting point, and

22 that's really what we intend to do here.

23 MR. TABOR: I've got a question --

24 MR. KATZ: Bob, please come to the mike.

25 MR. TABOR: Okay.
51 

NANCY LEE & ASSOCIATES

1 MR. KATZ: Thank you.

2 MR. TABOR: Bad leg. Bad back. Bob Tabor

3 again. If you have a situation -- well, let's

4 back up a second. Let's take Fernald, and let's

5 go back. I started at Fernald in 1981. When I

6 got there, there was very little as I recall, and

7 it wasn't even mandatory to wear respiratory

8 protection. Shortly there was optional or

9 opportunities to optionally wear respiratory

10 protection.

11 Now 1981, when you consider the fact that

12 there was employees there that had worked there

13 probably close to 30 years prior to my coming

14 there, and I was quite familiar with the

15 operations there of being a maintenance person,

16 have seen a lot of the operations that took

17 place. And I've seen those days of the type of

18 things that those folks were exposed to when

19 there was absolutely no protection provided

20 whatsoever -- a lot of oxide airbornes, as far as

21 creosol, black oxides.

22 I guess what I'm looking at is in those days

23 I don't believe that you had exposures going on

24 like that. I'm not so sure that even -- what am

25 I trying to say -- the badging at that time, that
52 

NANCY LEE & ASSOCIATES

1 they were even -- that was even being tracked

2 back in the early days. 

3 So maybe Charlie can even answer that. I

4 don't know, did they initially have badges way

5 back in those days?

6 MR. ALVIS: Yeah, they changed them, Bob,

7 over the years.

8 MR. TABOR: Okay.

9 MR. ALVIS: But I don't think they improved

10 them.

11 MR. TABOR: Okay. Well, let's say that with

12 those type of exposures and with the very, very

13 crude technologies of those days, you really, in

14 my estimation, would have a hard time saying,

15 okay, do we have any evidence evolve that we

16 found some dose reconstruction on?

17 Well, here's my point. If you had a group

18 of people, let's say 29 out of 30, that didn't

19 qualify or you couldn't do dose reconstruction on

20 because of the type of things that I just

21 mentioned, but you have one over here that you

22 can, where does that leave the situation or the

23 class for petitioning, like if I was to petition

24 on behalf of the union for the class of

25 employees?
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1 I know there's going to be some that

2 absolutely will qualify, where they say you

3 cannot really do a dose reconstruction on these

4 people because the length of time they worked

5 there and the way we went about detecting that

6 stuff. But then later on in years, Jim, like

7 when I came there, you'd probably have a hard

8 time in my case -- I probably would. I'm just

9 saying that probably if they did a dose

10 reconstruction on me, there'd probably be enough

11 evidence to do that. But I'm not so sure there'd

12 be enough evidence for somebody who started in

13 1951 or 1952.

14 MR. ALVIS: I don't think there is.

15 DR. NETON: We have a lot of latitude in

16 establishing a class. It can be as small as one

17 person and as large as the entire facility, or

18 somewhere in between, of course. So in your

19 particular example, we would have to evaluate the

20 work processes. And the one person who wasn't

21 exposed very high, clearly sounds like he was

22 doing something different, would not be included

23 in that class.

24 Let's take an example. Chemical operators

25 may be a class. That's an example of a type of
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NANCY LEE & ASSOCIATES

1 job function that may be a class. And we also --

2 and correct me if I'm wrong -- we can set the

3 dates for when that class is valid. So we can

4 say up through 1982, you had to have been

5 employed prior to 1982 and been a chemical

6 operator and worked in Plant Five, something like

7 that. 

8 So it all depends upon the circumstances

9 that we find when we go to investigate the

10 petition.

11 MR. TABOR: Okay. Well, that gives me some

12 better information. Because we can look at

13 certain groups and certain sections of folks in

14 the operation, not necessarily, say, petition for

15 the entire membership, you might say, of the

16 site?

17 DR. NETON: That's exactly right. In the

18 example that you provided it probably was

19 insoluble material, the lung may be the most

20 highly exposed organ. So we would use that organ

21 in our calculation from an internal perspective

22 to determine if the probability was as likely as

23 not that cancer could have been caused by these

24 levels of exposures, albeit unknown, but somehow

25 graphable within a certain magnitude.
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1 MR. TABOR: Well, that lends some clarity

2 for me. Thank you.

3 MR. KATZ: That's for dose reconstruction

4 you're talking about?

5 DR. NETON: No, I'm talking about

6 establishing a class. 

7 MR. KATZ: We use the most radiogenic

8 cancer.

9 DR. NETON: For the -- well, most radiogenic

10 or most-exposed related. So in that particular

11 case -- I'm giving an example. The cancer would

12 vary. But if it was an inhalation exposure to a

13 uranium insoluble, more likely the most

14 radiogenic cause of cancer would be, should be,

15 lung cancer. But I'd have to validate that.

16 MR. KATZ: And likewise, Bob, in your

17 example, in terms of you think practices haven't

18 changed over time, you would probably want to

19 define the period of time as part of the class.

20 MR. LEWIS: Hi. I'm Mark Lewis from PACE

21 International Union. I was noticing in Section

22 83.16, describes how the Secretary would cancel a

23 final decision to add a class to the cohort or

24 modify a final decision to reduce the scope of a

25 class the Secretary had added to the cohort.
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1 My question is, based on dose

2 reconstruction, and later on it says if they can

3 find dose reconstructions for the cohort, this

4 Section 83.16 describes how you can reverse that.

5 And I want to know what would happen to people

6 who already may have been awarded the money and

7 the compensation, and then how would they go

8 about finding out those other records so they can

9 do dose reconstruction? You've got somebody to

10 take a look into reconstructing the dose, even

11 after the cohort's been added.

12 MR. KATZ: So let me -- I'm not sure I

13 understood the second part of the question right.

14 But how would we cancel if you've already --

15 MR. LEWIS: Just say somebody's had a

16 radiological cancer.

17 MR. KATZ: Yes.

18 MR. LEWIS: They've been added, the class

19 has been added to the cohort, okay. So --

20 MR. KATZ: Right.

21 MR. LEWIS: -- the people worked here in

22 Fernald, they get awarded to be in the Special

23 Cohort. Maybe a few of them's been compensated.

24 Then somehow, someway, you can reconstruct the

25 dose? What mechanism is in place for this to
57 

NANCY LEE & ASSOCIATES

1 happen? And is there somebody working in the

2 organization continually trying to work on doses?

3 After 180 days is it done, or what's -- What's

4 the purpose of 83.16?

5 MR. KATZ: So now I understand you right.

6 Let me explain that. It's not that after we add

7 a class to the cohort that we will go searching

8 for records to try to cancel the class from being

9 added to the cohort. 

10 But we're going to be, as you know, we're

11 going to be doing dose reconstructions

12 perpetually from now till the end of time. And

13 in the course of doing dose reconstructions we

14 are going to run into records. We're going to

15 learn about records that we didn't know existed.

16 And it's at least a substantial probability that

17 we will turn -- records will turn up or DOE will

18 turn up some records at some point that they

19 didn't realize they had in some building

20 somewhere, in some boxes somewhere, or what have

21 you. 

22 But it would only be in those circumstances

23 where this arises, where we find ourself with

24 records that tell us very clearly we can do dose

25 reconstructions where we had added a class, that
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1 we would then begin the process of deciding

2 whether we should remove that class. So it

3 wouldn't be -- there would be no hunt to attempt

4 to cancel classes, but this would happen

5 spontaneously. 

6 MR. LEWIS: What would happen to the people

7 that's already been compensated?

8 MR. KATZ: So that, and the second part of

9 your question, what would happen to the people

10 who have already been compensated? And this is

11 really a question for the Department of Labor,

12 because they're the ones who have to determine

13 what happens in that circumstance for people who

14 have already been compensated. 

15 Roberta, do you want to take that question?

16 MS. MOSIER: Sure. We have not yet

17 determined what we will do under those

18 circumstances. This rule came out after our

19 rule. And we have an interim firewall in place

20 right now. So this is something that we would

21 need to think about.

22 I think if we were to declare an overpayment

23 or something like that, there are rules that

24 apply to that that would -- we'd have to consider

25 the person's financial situation and things like
59 

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1 that. But we have not yet established what we

2 would do under those circumstances. So that's

3 still an open question. 

4 MR. KATZ: Thank you, Roberta.

5 DR. NETON: Okay. Additional comments?

6 questions? Going once. 

7 [No responses]

8 DR. NETON: Okay. If there are no more

9 additional comments or questions, that completes

10 the formal portion of the meeting. We do

11 appreciate you all coming here this evening,

12 taking the time out to comment on this rule.

13 As I indicated earlier, NIOSH staff will be

14 available for a short time after the meeting to

15 talk to people individually if they have

16 additional questions. 

17 Again, thank you for coming, and have a safe

18 drive home.

19 (Whereupon, the meeting was adjourned at

20 8:23 p.m.)

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